Friend sacked for gross misconduct - does he have a case for unfair dismissal?

ScorpiondeRooftrouser

sangie595 wrote: »

Harsh possibly. But not unfair dismissal. It wouldn't have really mattered whether the customer heard it or not - not the sort of thing you do in a workplace, and it could have been the same outcome if a colleague or manager had heard him.

If you were going to fire people for calling customers ****s behind their backs, nobody would have a job.

Doing it so they can hear is of course quite another matter.

iammumtoone

ScorpiondeRooftrouser wrote: »

If you were going to fire people for calling customers ****s behind their backs, nobody would have a job.

I work B2B so it could be argued that I have more leeway is this respect than B2C. Of course I moan about the people I speak to (who doesn't) I am sure they moan about me as well! BUT I do not swear about them, if I did I'd be taken into HR for a formal chat (even if the person at the other end didn't hear). I have been known for swearing about my job/work not directed at anybody and I am pulled up for that, although not formally.

Undervalued

steampowered wrote: »

Personally I would feel very comfortable bringing an Employment Tribunal claim on the grounds that it is not reasonable to regard that isolated incident as gross misconduct, particularly if (1) he had a 15 year career without this being raised before, and (2) the employer was made aware during the disciplinary process that he was going through a rough patch in his personal life rendering his conduct out of the ordinary.

On the face of it, it sounds to me that this case could could go either way. Certainly it sounds strong enough to pursue legally and justify a settlement.

The legal criteria for gross misconduct are below, you can reach your own conclusions:

The conduct must be so serious that it goes to the root of the contract, that is, the conduct must be repudiatory, entitling the employer to dismiss with immediate effect (Wilson v Racher [1974] ICR 428).
The conduct must be a deliberate and wilful breach of the contract or amount to gross negligence (Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09).

Of course it is reasonable if it is serious enough!

Plus allowing a customer to hear you call them a *%$£ or a @!&^er etc is certainly negligent!

As I have said, point 2 may be valid mitigation if there are real personal issues that are serious enough to explain this very poor and damaging behaviour. However without some idea of what those issues are it is difficult to comment further.

FBaby

Personally I would feel very comfortable bringing an Employment Tribunal claim on the grounds that it is not reasonable to regard that isolated incident as gross misconduct

Except it wasn't an isolated incident, OP made it clear that they had a warning about their phone manners before even if it wasn't formal.

Not clear how soon before the incident that resulted in the dismissal, but it sounds like that person did have an issue with being to take a step back and his employer would have a good argument that his behaviour could have an adverse impact on their reputation, hence creating risk to the business.

It's a real pity that he couldn't learn from the initial warning, which was exactly that, telling him not to do it again or.

steampowered

Undervalued wrote: »

Of course it is reasonable if it is serious enough!

Plus allowing a customer to hear you call them a *%$£ or a @!&^er etc is certainly negligent!

There is a qualifier in your post - IF if it is serious enough.

As they choose to dismiss for gross misconduct, I think they can be challenged. Gross misconduct is a pretty high standard and is usually reserved for things like theft or assault.

If the employer had given this employee the proper amount of notice and then dismissed for basic misconduct, I think the decision would be much more difficult to challenge. But they didn't, they went down the gross misconduct route.

Personally, I can easily see a good lawyer presenting this as a case where a long-serving employee made the simple mistake of forgetting to turn his microphone off, in circumstances where he was under stress. A bit careless? Certainly. Gross misconduct? I'm not so sure.

agrinnall

steampowered wrote: »

There is a qualifier in your post - IF if it is serious enough.

Well clearly the employer thinks it is serious enough given the action they have taken. Anything can be challenged but I can't see an ET going against the employer's decision, so a challenge is likely to be a waste of money, time and emotion.

duchy

Most companies have an expectation either implied or contractual that employees will not damage their employer's reputation. It would be hard to argue that swearing or insulting a customer within their hearing wouldn't be damaging.

The fact he has already been warned about how he speaks to customers makes it harder to claim its a one off rather than an ongoing problem.

I think he should be guided by the union as they have experience of dealing with this particular company and their culture.

sangie595

ScorpiondeRooftrouser wrote: »

If you were going to fire people for calling customers ****s behind their backs, nobody would have a job.

Doing it so they can hear is of course quite another matter.

But it doesn't take a customer complaint to result in disciplinary action. If you act in this manner at work, then anyone is entitled to complain about it. And if this is a pattern of behaviours, which the OP suggests it is, then that is all it takes.

sangie595

steampowered wrote: »

There is a qualifier in your post - IF if it is serious enough.

As they choose to dismiss for gross misconduct, I think they can be challenged. Gross misconduct is a pretty high standard and is usually reserved for things like theft or assault.

If the employer had given this employee the proper amount of notice and then dismissed for basic misconduct, I think the decision would be much more difficult to challenge. But they didn't, they went down the gross misconduct route.

Personally, I can easily see a good lawyer presenting this as a case where a long-serving employee made the simple mistake of forgetting to turn his microphone off, in circumstances where he was under stress. A bit careless? Certainly. Gross misconduct? I'm not so sure.

An interesting interpretation of the function of law and employment tribunals. One which, like others here, I cannot agree. The length of service or previous good conduct of an employee is not something a tribunal is permitted to take into account. Mitigation is purely about the employers hearing of the case. Even if there hadn't been previous warnings about conduct, which there were - they may not have been disciplinary warnings, but they were still warnings and part of the record.

The test of the tribunal is whether the outcome is one which a reasonable employer might consider. The fact is that any disciplinary outcome falls within a spectrum - one employer might have given a final warning, another might dismiss with notice, another dismiss for gross misconduct. Each of these may be deemed with that spectrum of "reasonable outcomes". So that is the only test to be applied - the tribunal cannot substitute its own judgement for that of the employer. And under that test, yes, I would say that dismissal for gross misconduct definitely falls within that spectrum.

Further, I cannot see any practical sense as to why any good lawyer would want to take on the case, because, even in the very unlikely event that they won, they wouldn't have very much to win! There is no doubt that swearing at a customer in their hearing, whether a mistake or not, is within the spectrum of outcomes for a tribunal to consider. Once again, it is still not up to the tribunal to make their own decision as to the mitigation. But let's assume, in your very unlikely scenario, they win. They would only be able to claim an award of notice pay unpaid, because the "backstop" position is that dismissal is definitely within that range of outcomes a reasonable employer would consider. To what extent did they contribute to their own dismissal? That would be 100% because it wouldn't have happened if not for their own actions. Apply Polkey deductions, throw in the cost of the lawyer, and the tribunal fees, and it is a negative balance! And that is before you add on the "reference factor" which will pretty much make them unemployable as soon as the story is told.

I would be inclined to consider that a good outcome at this stage would be an agreed reference in light of previous good service and mitigation. It's a high price to pay for one single incident - but such things often are just one single incident. But "lesson learned", with a reasonably decent reference, many employers would be inclined to accept that the explanation of the circumstances is worth taking a risk on. It isn't very likely that he would do it again.

Undervalued

steampowered wrote: »

There is a qualifier in your post - IF if it is serious enough.

As they choose to dismiss for gross misconduct, I think they can be challenged. Gross misconduct is a pretty high standard and is usually reserved for things like theft or assault.

If the employer had given this employee the proper amount of notice and then dismissed for basic misconduct, I think the decision would be much more difficult to challenge. But they didn't, they went down the gross misconduct route.

Personally, I can easily see a good lawyer presenting this as a case where a long-serving employee made the simple mistake of forgetting to turn his microphone off, in circumstances where he was under stress. A bit careless? Certainly. Gross misconduct? I'm not so sure.

Sorry but I disagree.

Sangie has beaten me to it and explained the reasons so I won't bother repeating them. I would just add that the days of automatic wins at employment tribunals for minor technical errors made by the employer are behind us.

As has been explained even if (and that is a big if) this is "only" misconduct and not gross then all that would lead to is notice pay.

OK, in this case that would be 12 weeks pay so I suppose that might make it worth the gamble.